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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> HER MAJESTY'S ADVOCATE, APPEAL BY AGAINST AD [2018] ScotHC HCJAC_2 (09 January 2018)
URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2018]_HCJAC_2.html
Cite as: [2018] HCJAC 2, 2018 SLT 101, 2018 GWD 2-38, 2018 SCCR 42, 2018 JC 109, [2018] ScotHC HCJAC_2
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2018] HCJAC 2
HCA/2017/000526/XC
Lady Paton
Lord Menzies
Lady Clark of Calton
OPINION OF THE COURT
delivered by LADY PATON
in
APPEAL
by
HER MAJESTY’S ADVOCATE
against
AD
Appellant
Respondent
Appellant: Cameron (sol adv) AD; Crown Agent
Respondent: Fyffe (sol adv); Bruce & Co, Arbroath
9 January 2018
Proposed amendment of docket to include time-barred offences
[1] The question in this appeal is whether allegations concerning certain sexual offences,
said to have been committed by the respondent during 1973 to 1974 against a complainer
PC, may competently be included in a docket in an indictment libelling other alleged sexual
offences during 1973 to 1996 against complainers AVD, JAD, AD, and LH, when a judge has
Page 2 ⇓
2
ruled that the expired 12-month time-bar relating to the alleged offences involving PC
should not be retrospectively extended in terms of section 65 of the Criminal Procedure
(Scotland) Act 1995.
[2] It is necessary to set out a summary of events. The first 10 entries below are not in
precise chronological order, as they reflect the terms of an indictment ultimately served
upon the respondent on 17 November 2016. Subsequent entries are in chronological order.
Charges in the indictment
13 April 1973 to 12 April 1984: The respondent’s alleged lewd and libidinous
behaviour towards his step-daughter PC, born on 13 April 1969 (Charge 1 in the
indictment).
13 April 1981 to 13 April 1984: Further alleged lewd and libidinous behaviour
towards PC (Charge 2).
January 1980: The alleged rape of PC (Charge 3).
20 August 1975 to 19 August 1977: The respondent’s alleged lewd and libidinous
behaviour towards his step-son AVD, born on 20 August 1970 (Charge 4).
13 April 1973 to 19 August 1977: Alleged wilful ill-treatment of AVD (Charge 5 ).
August 1977: The alleged sodomy of AVD (Charge 6).
4 April 1976 to 3 April 1977: One occasion of alleged lewd and libidinous behaviour
by the respondent towards his step-son JAD, born on 4 April 1967 (Charge 7).
1 July 1980 to 30 June 1983: Alleged lewd and libidinous behaviour towards AD, a
male born on 1 July 1967 (Charge 8).
May 1996: An alleged indecent assault on LH, an adult female (Charge 9).
13 April 1973 to 12 April 1981: Alleged lewd and libidinous behaviour towards PC in
London (ie outwith the jurisdiction, but included in a docket to the indictment).
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3
Other events in chronological order
May 1996: PC provided a statement to the police relating to alleged sexual abuse by
the respondent. At that time, the police had no corroborative evidence.
November 1996: The respondent was interviewed. He made certain equivocal
admissions which were insufficient for corroboration.
January 1997: PC’s mother gave a statement which provided corroboration for some
of PC’s complaints.
April 1997: The respondent was again interviewed.
16 July 1997: The respondent was put on petition on charges relating to behaviour
towards PC as set out in Charges 1, 2, and 3 in the indictment which was eventually
served on the respondent on 17 November 2016 (see below). No record of the
petition now exists.
16 July 1998: The 12-month period relating to the petition expired. It is not known
why the Crown permitted the 12-month period to expire, although the advocate
depute appearing before a judge in a later motion for the extension of the 12-month
period (see below, 20 January 2017) submitted that:
“ … it was reasonable to proceed on the basis that a decision was taken not to
indict the accused within the 12-month period because of the paucity of
evidence then available (page 4 of Lord Burns’ Note dated 2 February 2017)”.
November 1998: PC’s brother JAD approached the police and gave a statement about
alleged abuse at the hands of the respondent, explaining that he did so in order to
assist his sister’s case. It is not clear why the Crown did not at that stage seek a
retrospective extension of the 12-month period (pages 4-5 of Lord Burns’ Note).
7 March 2000: JAD died.
2 March 2009: The respondent attended at a police office and confessed to sexually
abusing PC. An occurrence report was completed. Although the respondent had
made admissions, he had done so without legal advice. The procurator fiscal
appeared not to have JAD’s statement (page 7 of Lord Burns’ Note). No further
action was taken at that stage.
November 2015: AVD provided the police with a statement about alleged sexual
abuse at the hands of the respondent. The respondent denied any such abuse. The
police made a report to the procurator fiscal.
19 January 2016: The respondent appeared on petition in relation to alleged offences
against PC, AVD and JAD.
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4
17 November 2016: An indictment was served upon the respondent. The indictment
contained the nine charges set out at the beginning of this summary of events,
including Charges 1, 2 and 3 specifying sexual offences against PC. There was also a
docket relating to alleged lewd and libidinous behaviour towards PC in London.
12 December 2016: The Crown lodged a minute in terms of section 65 of the 1995 Act,
seeking a retrospective extension of the 12-month period in respect of the first three
charges concerning PC, as that period had expired on 16 July 1998 as noted above.
The remaining charges were not affected by the expiry of the 12-month period.
20 January 2017: A hearing on the section 65 minute took place before Lord Burns.
2 February 2017: Lord Burns refused to grant the retrospective extension. The
relevant passage from his decision can be found in paragraph [5] below. There was
no appeal.
July 2017: The Crown intimated their intention to call PC to give evidence relating to
Charges 1, 2 and 3 for evidential purposes only, to invite the jury to accept her
evidence along with that of AVD, the late JAD (whose evidence was to be led in
terms of section 259 of the 1995 Act), and AD, and to conclude that the behaviour
libelled in Charges 1, 2 and 3 formed part of a single course of criminal conduct
systematically being pursued by the respondent (the Moorov doctrine).
July 2017: The defence lodged a minute taking a preliminary objection to the
admissibility of evidence to be led in respect of Charges 1, 2 and 3. Submissions
were made before Lady Scott.
24 July 2017: Lady Scott issued a Note ruling that the indictment could not proceed
in a form which contained the time-barred Charges 1, 2 and 3, as to do so would be
incompetent. However the possible use of the docket procedure in terms of section
288 was raised.
26 July 2017: The Crown moved the court to allow the indictment to be amended by
deleting Charges 1, 2 and 3 and amending the docket to the indictment by inserting
the deleted charges in paragraphs 2, 3 and 4 of the docket. The motion was opposed,
and was continued to 25 August 2017.
25 August 2017: The continued motion to amend was heard by Lord Glennie. A
defence minute (number (4) dated 30 July 2017) was before the court. The minute
contained paragraph 2(a) objecting to the amendment; paragraph 2(b) objecting to the
leading of evidence in relation to Charges 1 to 3 (or paragraphs 2 to 4 of the docket);
and paragraph (3), a plea in bar of trial in relation to those charges/paragraphs, on the
ground of oppression. Lord Glennie refused the Crown’s motion, and provided
written reasons in a Note dated 25 August 2017 (see paragraph [7] below). The Crown
appealed. Lord Glennie provided a Further Note date-stamped 20 October 2017.
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5
1 November 2017: The Crown’s appeal was heard before this court. The matter was
taken to avizandum.
Section 65 of the Criminal Procedure (Scotland) Act 1995
[3] Section 65 of the Criminal Procedure (Scotland) Act 1995 provides inter alia:
“Prevention of delay in trials
(1) Subject to subsections (2) and (3) below, an accused shall not be tried on
indictment for any offence unless
(a) where an indictment has been served on the accused in respect of the
High Court, a preliminary hearing is commenced within the period of
11 months; and
(aa) where an indictment has been served on the accused in respect of the
sheriff court, a first diet is commenced within the period of 11 months;
(b) in any case, the trial is commenced within the period of 12 months,
of the first appearance of the accused on petition in respect of the offence.
(1A) If the preliminary hearing (where subsection (1)(a) above applies), the first
diet (where subsection (1)(aa) above applies) or the trial is not so commenced,
the accused
(a) shall be discharged forthwith from any indictment as respects the
offence; and
(b) shall not at any time be proceeded against on indictment as respects
the offence.”
Section 288BA of the 1995 Act
[4] Section 288BA of the 1995 Act provides:
“Dockets for charges of sexual offences
(1) An indictment or a complaint may include a docket which specifies any act or
omission that is connected with a sexual offence charged in the indictment or
complaint.
(2) Here, an act or omission is connected with such an offence charged if it-
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6
(a) is specifiable by way of reference to a sexual offence, and
(b) relates to-
(i) the same event as the offence charged, or
(ii) a series of events of which that offence is also part.
(3) The docket is to be in the form of a note apart from the offence charged.
(4) It does not matter whether the act or omission, if it were instead charged as
an offence, could not competently be dealt with by the court (including as
particularly constituted) in which the indictment or complaint is proceeding.
(5) Where under subsection (1) a docket is included in an indictment or a
complaint, it is to be presumed that-
(a) the accused person has been given fair notice of the prosecutor’s
intention to lead evidence of the act or omission specified in the
docket, and
(b) evidence of the act or omission is admissible as relevant.
(6) The references in this section to a sexual offence are to-
(a) an offence under the Sexual Offences (Scotland) Act 2009,
(b) any other offence involving a significant sexual element.”
Lord Burns’ refusal of a retrospective extension of the 12-month period
[5] In his Note dated 2 February 2017, Lord Burns set out the history and the
submissions, and at page 6 continued:
“ … I am unable to conclude that the Crown discharged the burden upon it to satisfy
me that there was a reason for requiring this retrospective extension to the 12 month
period which …might justify the extension sought. I accept that the Crown
justifiably took no further action to serve an indictment within the 12 month period.
However, in December 1998 the procurator fiscal was sent the statement of JD
[ie JAD]. The advocate depute accepted that that statement would have been capable
mutually to corroborate a number of the allegations made by the complainer and it
would have therefore been open to the Crown to consider prosecution on both sets of
allegations on application for an extension of the 12 month period in respect of the
allegations of PC at that time. While the advocate depute attempted to ascribe the
failure to take action as an error, he was unable to identify the nature of that error.
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7
He could give me a range of possibilities from total ignorance of the existence of
section 65(3) on the part of the procurator fiscal to considering it “inappropriate” to
make such an application. Since the nature of the error is not identified I am unable
to conclude that the error is excusable. Furthermore there is another explanation. It
may be that the procurator fiscal at the time considered that the evidence advanced
by JD was not of sufficient quality to justify an application being made. Again I have
no means of knowing whether that was the case and, if it was, [on] what basis that
conclusion might have been reached. This case therefore falls short of the situation
in cases such as Lauchlan and O’Neil v HMA a decision of the appeal court of 5 June
2009 where the court was able to conclude that a decision not to proceed was taken
after “careful and reasoned analysis” (see paragraph 24) and DMcL and CG quoted
above.
In any event, even if the Crown could have identified the reason for no steps having
been taken after December 1998 to obtain an extension, as Mr Fyffe pointed out, there
remains the further circumstance that in 2009 another opportunity arose to revive
these charges which was not taken. It is unclear why, after receipt of the occurrence
report of 1 May 2009, no further action was taken. More admissions were made at
that stage by the accused in relation to the allegations by the complainer. The Crown
was informed in that report that the accused had previously been interviewed in
1996. There was however no reference to or consideration of the statement of JD
which would have been available mutually to corroborate the allegations of PC. No
explanation is advanced as to why that information was not taken into account at
that time. It seems to me that that can be ascribed to fault on the part of the Crown in
failing to have a system which would identify previous information which could be
used to corroborate charges being considered. The Crown is unable to explain why
that error was made and cannot show that it is capable of being excused (Early
paragraph 22).
In these circumstances I am not satisfied that the Crown has advanced circumstances
which might justify the grant of an extension and I consider that the Crown fail at the
first stage.
Even if I had concluded otherwise, I would not have exercised my discretion in
favour of the Crown. This is a retrospective application to prosecute charges which
are up to 43 years of age. The extension sought is exceptionally long at over 18 years.
While they are very serious, and, as the advocate depute pointed out, the complainer
remains willing and anxious to give evidence upon them, having regard to the whole
history of this matter and the way in which it has been dealt with by the Crown over
the intervening period, I do not consider that it would be in the interests of justice to
grant such an extraordinary extension to the 12 month period. Four decades have
passed since some of these events are said to have taken place which will cause
difficulties in the preparation of any defence to them. Furthermore, the charges will
rely for corroboration upon, among other matters, the evidence of the statement of
JD which would have to be introduced by section 259 of the 1995 Act. That raises a
question of the fairness of prosecuting charges 1 to 3 now when those charges and
the charges relating to JD could have been prosecuted prior to the death of JD in
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8
March of [2000]. In my judgment, no sufficient justification can be advanced for so
long an extension to the statutory 12 month period. In the circumstances the
application is refused.
Lady Scott’s decision that the indictment, as framed, was incompetent
[6] In her Note issued on 24 July 2017, Lady Scott stated:
“Decision
I do not accept the issue here is simply about the admissibility of evidence. There is
a clear issue of procedure here. The proper starting point is that the accused remains
indicted on charges which have been ruled as incompetent. The indictment
containing charges where an objection to those charges has been taken and sustained
cannot be proceeded with, irrespective as to whether or not a conviction on them is
sought.
The Advocate Depute [is] seeking to treat the charges as now, in effect, some kind of
‘evidential’ charges.
This fails to address the effect of the ruling [that] they are time barred. The position
here in my view is quite different to the situation where evidence has been led and
charges withdrawn or so called ‘evidential charges’ have been libelled and intimated
as such at the outset. This indictment in its present form containing the incompetent
charges cannot proceed. I do not consider these charges can simply be re-interpreted
as suits.
I am fortified in this view by the introduction of statutory dockets which were
introduced to address the leading of evidence on inter alia an incompetent charge.
They provide an appropriate mechanism here. They also provide qualifying
requirements or limitations to safeguard the admission of such evidence.
S288BA of the 1995 Act provides at ss(4)
‘It does not matter whether the act or omission, if it were instead charged as
an offence, could not competently be dealt with by the court (including as
particularly constituted) in which the indictment or complaint is proceeding.’
Accordingly I sustain the objection that it is not competent to proceed on this
indictment containing the incompetent charges 1, 2 and 3.”
Lord Glennie’s Notes dated 25 August 2017 and date-stamped 20 October 2017
[7] In his Note dated 25 August 2017, Lord Glennie reasoned as follows:
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9
“[13]
For the accused, Mr Fyffe, who spoke first, submitted that the real question
before the court was not one of the admissibility of the evidence but of the
competency of amending the docket in the particular circumstances of this
case. He emphasised that it was a question of competency. He accepted that
in general it was competent to amend a docket. However, the docket was
included within and was therefore part of the indictment: see section
288BA(1) (“an indictment … may include a docket …”). That being so, the
terms of section 65(1A) of the 1995 Act were clear: the accused “shall be
discharged forthwith from any indictment as respects the offence” and “shall
not at any time be proceeded against on indictment as respects the offence”.
Simply moving the offences from one part of the indictment to another part
(the docket) did not assist the Crown; the accused was still being proceeded
against on the indictment as respects these offences even though the Crown
could not seek a conviction against him for those offences. The terms of
section 288BA(4), which provided that it did not matter that the offence
referred to in the docket could not competently be dealt with by the court, did
not assist the Crown; that was focusing on a different question, such as where
the docketed offence took place outwith the jurisdiction, and in any event that
provision could not override the statutory prohibition in section 65 against
proceeding against the accused on indictment as respects the offence. So far
as concerned the Crown’s application to amend the docket (which logically
came prior to his minute in respect of the amendment) that involved the
exercise by the court of its discretion. Lord Burns had already ruled (in his
Note, on the question of whether to extend time) that allowing the extension
of time, and therefore allowing these offences to be proceeded with, would be
unfair to the accused in terms of his ability to prepare a defence in respect of
matters which are alleged to have occurred so long ago. That same reasoning
applied whether these matters were libelled in charges 1 to 3 or were simply
included within the docket; the difficulties faced by the defence would be the
same in either case and, because the evidence on these charges would be used
to corroborate that on other charges, the potential prejudice just as great.
Those same factors applied also to the motion in bar of trial.
[14] For the Crown, the advocate depute submitted that the question was really
one of admissibility. He submitted that even without the amendment to the
docket he was entitled to lead evidence of the matters formerly included in
charges 1 to 3. There was no lack of fair notice – fair notice had been given
(both in the original version of the indictment and in the proposed
amendment to the docket) of the matters in respect of which evidence was to
be tendered. Nor was there any difficulty as regards relevance, since those
matters, if proved, would be directly relevant (by way of the doctrine of
mutual corroboration) to the other charges libelled. The purpose of section 65
of the 1995 Act was to prevent delay in trials. It was not concerned with the
admissibility of evidence. The effect of that section was that, if the time limits
were not met, the Crown could not seek a conviction on any charge on the
indictment which had become time barred, but it had nothing to say about
the leading of evidence (even on the same matters) insofar as that evidence
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10
was relevant to any charges that remained “live”. As a matter of discretion, it
would be wrong to refuse to allow the docket to be amended. So far as
concerned the case on oppression, the question was whether it could be said
at this stage that the course of action proposed by the Crown would
irretrievably prejudice the trial of the accused in a way which it was beyond
the power of the trial judge to cure by an appropriate direction to the jury.
That was a high test which had not been met.
Decision and Reasons
[15] After conclusion of oral argument, I adjourned briefly to consider my
decision. On returning to court I indicated that I would give my decision in
summary form but that, if requested for the purposes of an appeal, I would
set out my reasoning in greater detail.
[16] My decision was as follows.
(1) I refused leave to amend the docket to include the matters previously
contained in charges 1 to 3 of the indictment.
(2) I upheld (in so far as necessary and for the avoidance of doubt) the
paragraph 2(a) of the Minute objecting to the amendment.
(3) I upheld paragraph 2(b) of the Minute and ruled that the Crown was
not entitled to lead evidence relating to the matters formerly in
charges 1 to 3 of the indictment (which the Crown had attempted to
amend into the docket).
(4) In light of these rulings, I did not require to rule on the plea in bar of
trial.
I was requested to give my full reasoning in writing. These were and are my
reasons.
The Proposed Amendment to the Docket
[17] I considered that Mr Fyffe was correct in his argument as to the effect of
section 65(1A) of the 1995 Act. The effect of the particular charges being time
barred was that the accused was discharged from the indictment “as respects
the offence” and could not be proceeded against on the indictment “as
respects the offence”. The term “as respects” the offence was very wide. The
section did not say simply that he could not be proceeded against “for” the
offence. Further, the indictment included the docket. Seeking to prove the
matters in the docket was, therefore, proceeding against the accused “on the
indictment” as respects the offences contained within the docket, and as such
was prohibited by the terms of the section.
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11
[18] For that reason I refused the Crown’s motion to amend the docket. And, for
the avoidance of doubt, I also upheld the objection to amendment raised in
paragraph 2(a) of the defence Minute.
[19] I would just add this observation. If the argument for the Crown was correct,
there would appear to be no reason why, after Lord Burns refused to extend
time, the allegations in charges 1 to 3 could not have remained as charges 1 to
3, on an undertaking by the Crown not to seek a conviction on these charges.
There would have been no need to “move” these allegations to the docket.
But Lady Scott appears to have thought that this course was incompetent. I
agree with that view. It would be incompetent to do this because it would
mean that, contrary to the prohibition in section 65, the Crown would be
proceeding against the accused on the indictment as respects these offences
(amongst others). But it is difficult to see what difference there is in principle
between that position and what is now sought to be achieved by moving
these offences to the docket. Being included in the docket, they remain on the
indictment, and the same argument applies: contrary to the prohibition in
section 65, the Crown would be proceeding against the accused on the
indictment as respects these offences (amongst others).
[20] I should mention that, in support of his argument that it was not competent
to include within a docket matters which were time-barred in terms of section
He submitted that the grant of the extension of time in that case proceeded on
the assumption that, unless time was extended, the evidence in respect of
those time-barred offences could not be led at all, whereas it could have been
had the docket route been available. I was not attracted to this argument. It
seemed to me to read too much into the absence of any reference in the
opinion of the court to the docket procedure. It did not appear to me that the
court in that case had considered the point. Mr Fyffe also referred to remarks
made by Lord Mackay of Drumadoon at paragraph [44] of his opinion in
that if an offence was time-barred under section 65, it was not open to the
Crown, in proceedings on indictment, to lead evidence in relation to that
offence for the purpose of obtaining corroborating evidence for other charges.
I am not persuaded that Lord Mackay of Drumadoon had this point in mind,
nor did he have in mind the docket procedure, the legislative provisions for
which had not by that time been brought into force.
[21] Quite apart from the question of competency, I would in any event as a
matter of discretion have refused the Crown’s application for leave to make
the amendment by introducing these matters into the docket. It seemed to
me that all of the matters relied upon by Lord Burns (set out at paragraph [9]
above) for refusing to extend time (at the second stage, had he got that far)
applied in equal measure here. I adopt that reasoning mutatis mutandis. The
potential prejudice to any person having to defend accusations in respect of
matters alleged to have happened over 40 years ago cannot be overestimated.
Page 12 ⇓
12
[22] There is, perhaps, a difference between the situation which faced Lord Burns
and that with which I am concerned. That is that if Lord Burns had granted
an extension of time it would have exposed the accused to the possibility that
he would have been convicted of these three offences along with the other
offences on the indictment, and in due course sentenced for all those offences.
By contrast, no conviction is now sought in respect of those matters, since
they are proposed to be put in the docket for evidential reasons only and to
provide a basis for evidence to be led corroborating other charges. In my
opinion, however, that is a distinction without any real difference. The
inclusion of these matters in the docket is sought by the Crown because it
considers that it needs, or may need, to rely upon this evidence to corroborate
evidence in support of other charges. There is, presumably, the possibility
that without evidence in relation to the matters proposed to be put in the
docket those other charges will fail for want of corroboration. On that
analysis the inevitable difficulties faced by the accused in having to defend
himself on these matters may be critical to the question of whether he is
convicted of other charges and whether he loses his liberty as a result.
[23] It may be argued that the potential difficulties likely to be faced by the
accused in answering the allegations which are proposed to be inserted in the
docket are not different from the difficulties that he may face in defending
himself against the remaining charges in the indictment. Charges 4 to 8 are
concerned with events which are alleged to have happened at about the same
time – hence, of course, their relevance from the point of view of
corroboration. That may be true, but it does not, in my view, provide an
answer. Let it be assumed that the accused will face similar difficulties in
defending himself on charges 4 to 8. So what? Why should that mean that he
should also face an additional three charges and be subjected to the same
difficulties in defending himself against these, with potentially serious
consequences should he fail?
[24] It was not suggested by the advocate depute that the Crown would be unable
to proceed on the other charges if the amendment were to be refused. This
was influenced, in granting an extension of time in relation to certain charges,
by the fact that, unless those charges could be proceeded with, other charges
(in another petition) could not proceed because of the lack of corroboration.
The Leading of Evidence Relating to These Matters
[25] I also upheld the objection raised in paragraph 2(b) to the Crown leading
evidence on those matters. The point, of course, only arose for decision if, as I
did, I refused the Crown motion to amend the docket so as to include what
had previously been charges 1 to 3 on the indictment. I approached the
question on the basis that the charges had been deleted as charges 1 to 3 but
had not been amended into the docket.
Page 13 ⇓
13
[26] It was accepted by the advocate depute that the general rule, expressed
somewhat loosely, is that evidence may not be led to prove the commission of
any offence other than those libelled (or docketed) in the indictment. As I
understood it, however, he submitted that this was all part of the rule about
the requirement for relevancy and fair notice. He referred me to Nelson v
HMA 1994 SCCR 192 at 203 C-D where it was stated that:
‘The Crown can lead any evidence relevant to the proof of a crime
charged, even though it may show or tend to show the commission of
another crime not charged, unless fair notice requires that that a crime
should be charged or otherwise referred to expressly in the complaint
or indictment.’
He also referred me to McIntosh v HMA 1986 JC 169 at 172. Although I accept
that the test is ultimately one of relevancy and fair notice (see Nelson at page
199D), I did not consider that these authorities assisted his argument. In the
circumstances of this case fair notice did require that these matters, namely
the matters which had originally been in charges 1 to 3, should be charged or
otherwise referred to expressly in the indictment before evidence could be led
in relation to them. By contrast with McIntosh, where the matters narrated in
the deleted charge formed part of the sequence of events leading up to the
commission of the offences libelled in the remaining charges, and were
directly relevant to prove the mens rea relative to the later actions, the matters
contained within deleted charges 1 to 3 here were not incidental matters of
criminality forming part of the narrative or chain of events leading up to the
offences libelled in the charges remaining on the indictment: rather, they
related to separate matters altogether, even though the Crown sought to
contend that they all formed part of a single course of criminal conduct so as
to support its case on mutual corroboration. Nor was it right to regard their
earlier introduction and deletion as being sufficient to give notice that
evidence would nonetheless be led to prove them. On the contrary, the
purpose of section 65 was to prevent such matters being proceeded with on
indictment after they had become time-barred. Further, the whole thrust of
Lord Burns’ decision was that it was much too late to allow these charges to
be insisted upon, not least because of the prejudice to the accused of having
to defend them. In those circumstances, so it seemed to me, the fact that these
matters were originally on the indictment as charges 1 to 3, and the fact that
the Crown had applied to amend to put them in the docket, was not sufficient
to amount to fair notice. I considered that evidence in support of these
matters was not admissible unless the allegations were included in the
docket. Since I had refused leave to amend the docket to include these
matters, the evidence was not admissible.
Page 14 ⇓
14
Oppression
[27] Since I had refused to allow the amendment and had ruled that the evidence
relating to the matters previously libelled in charges 1 to 3 could not be [led],
I saw no need to deal with the third part of the accused’s minute relating to
oppression.”
[8] In his Further Note date-stamped 20 October 2017, Lord Glennie added:
“[1] I have now had sight of the Note of Appeal lodged on behalf of the Crown in
this case. I have been asked whether, in light of what is contained therein, I
wish to add anything to my Note of 25 August 2017.
[2] I only wish to say this. In paragraph 6(i) of the Note of Appeal it is suggested
that I held that the provisions of section 65(1A) of the Criminal Procedure
(Scotland) Act 1995 encompassed the admissibility of evidence. This
mis-states my decision. My decision was that section 65(1A) prevented the
inclusion of these matters in the docket, since the docket was part of the
indictment, even though, being in the docket, they were not matters on which
the Crown sought a conviction. My decision about the inadmissibility of
evidence flowed from my decision that the docket could not be amended to
include these matters. The Crown summary of my decision puts it the other
way round.
[3] I am not sure that this adds anything of substance, but I thought I ought to
clarify the position.
[4] There is nothing further that I wish to add.”
The Crown’s submissions in the appeal court
Amendment of the indictment
[9] The advocate depute accepted that the respondent could not be charged on
indictment with the alleged offences contained in former charges 1, 2 and 3. To that extent,
he could not be “proceeded against”. But Lord Glennie had erred in reaching the decision
he did. The Crown was entitled to lead and to rely upon the evidence which was proposed
to be in the docket unless that evidence had been unfairly obtained. Unfairness or
oppression or conduct in breach of Article 6 of the ECHR would disentitle the Crown from
relying upon such evidence: but if the ground of objection was another reason (for example,
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15
section 65 and time-bar, or lack of jurisdiction) then the Crown was entitled to lead and rely
upon the evidence.
[10] The purpose of section 65 was to prevent delay in trials, to prevent an allegation
from hanging over an accused for a considerable time. The respondent had had the benefit
of section 65 in that he could not be prosecuted or sentenced for those alleged offences.
Even if an accused had been acquitted of offences, evidence relating to those offences might
be used in a docket. The advocate depute advised that he was aware of one case where the
indictment libelled sexual offences committed against complainers A, B and C. Pleas of
“Not guilty” in respect of those charges had to be accepted by the Crown on the information
then available. However new complainers D, E and F came forward. Also B volunteered
new information about more serious charges. The accused then appeared on indictment
using the earlier evidence (to which “Not guilty” pleas had been accepted) incorporated in a
docket to the indictment. The accused was at risk of a custodial sentence only in respect of
the new charges, and in that way the accused had the benefit of section 65. Similarly in the
present case, the respondent could not be convicted of any alleged offences concerning PC,
nor did he have to face sentence on those matters. The respondent was not being
“proceeded against” in respect of charges 1, 2 and 3: he could not be convicted of those
charges.
[11] Section 65 was a procedural safeguard. The respondent had had the full benefit of
section 65: he could not be prosecuted or convicted of the alleged offences in charges 1, 2
or 3. The key words were “proceeded against”. Those words meant “charged on indictment
and at risk of conviction”. It did not follow from the “discharge” of the respondent from
certain alleged offences libelled in an indictment that the events referred to were not
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16
relevant and admissible in relation to other charges. By contrast with certain statutory
offences containing time-limits (which could only be prosecuted within the time-limit)
section 65 was simply concerned with the period of 12 months from the petition. The other
charges involving AVD, JAD, and AD were of a similar vintage, the only difference from the
charges involving PC being that the respondent had not been put on petition in relation to
those charges. Once on petition on a particular charge, section 65 required that the trial on
that charge took place within the 12 month period (thus avoiding the accused having the
allegations in the petition hanging over him).
The admissibility of PC’s evidence
[12] The advocate depute submitted that, for PC’s evidence to be admissible, it had to be
relevant to the proof of the charges libelled in the indictment; also fair notice had to be
given to the accused of the Crown’s intention to lead that evidence (Nelson v HM Advocate
1994 JC 94 at page 104C-D).
[13] In the present case, fair notice would be given either by the original charges 1, 2
and 3, or by the amended docket. The Crown’s intention was to lead evidence from PC even
if the docket was not amended (McIntosh v HM Advocate 1986 JC 169 at pages 172-173, a
pre-docket case), on the view that Lord Glennie was not correct in his construction of
section 65 and the meaning of “proceeded against on indictment as respects the offence”.
[14] As for the question whether PC’s evidence would be relevant, it was submitted that
it was permissible to use evidence led on the basis of a docket (rather than a charge) to be
used for mutual corroboration of the charges in the indictment (Lauchlan and O’Neill v
HM Advocate (No 2) 2015 JC 75 paragraph [6]). Evidence which could not result in a
conviction could be used to provide corroboration (Lauchlan cit sup paragraphs [27] to [29],
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17
appreciable difference between the effect of section 65 and offences outwith the jurisdiction:
certain offences could not form the basis of charges in the indictment, but could
nevertheless, if evidence was accepted as credible and reliable, constitute relevant evidence
insofar as providing mutual corroboration and thereby assisting in the proof of another
charge.
[15] The defence might rely upon DMcL v HM Advocate 2016 JC 25, paragraph [21].
However in DMcL, the court was not addressing the question which had arisen in the
present case, and too much should not be taken from DMcL.
Oppression
[16] The argument concerning oppression would arise if the court held that the evidence
was otherwise admissible and could be led by the Crown. It was submitted that it would
not be oppressive within the definition set out in McFadyen v Annan 1992 JC 53, at page 60,
to allow the evidence to be led. The jury would be invited to accept the evidence of PC, and
to find her credible and reliable. But if the matters she spoke of were relevant, and if the
respondent was given fair notice concerning those matters, it was not oppressive to include
the alleged offences concerning PC in the docket, or to lead her evidence at the respondent’s
trial. While it might be argued that the respondent would not have a chance to go to a jury
and clear his name in relation to those alleged offences by obtaining a “Not guilty” verdict
in respect of charges 1, 2 and 3, it was the Crown’s contention that the respondent was
placed in a better position by the docket procedure, as he could not be “proceeded against”
in respect of those offences. Each case would depend on its circumstances. If, in a trial, a
complainer A gave credible evidence of sexual abuse perpetrated by the accused, but the
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only other complainer B refused to speak resulting in a lack of corroboration and the
abandonment of the case, it was not necessarily unfair in a later trial involving the same
accused and other complainers (who had later come forward) to allow the Crown to rely
upon A’s evidence by the docket procedure. Lord Glennie had not in fact come to any view
in respect of the second argument concerning oppression. It was not being suggested that it
would be oppressive to lead evidence on the other charges (involving AVD, JAD, and AD),
and those offences were of a similar type and age (cf the appeal court ruling in HM Advocate
a result of the passage of time, there was a lack of exculpatory witnesses and materials).
Conclusion
[17] The court should allow the appeal; reverse Lord Glennie’s decision; allow the
docket to be amended as sought; and remit the case for trial on the amended indictment. It
was acknowledged that the point raised in this case, combining the time-bar in section 65
and the docket procedure in section 288BA, had not been the subject of a previous decision
by a court.
The respondent’s submissions in the appeal court
[18] Mr Fyffe invited the court to refuse the appeal. He adopted the reasoning of Lord
Glennie, as set out in his Note dated 25 August 2017, and his Further Note date-stamped 20
October 2017.
Competency and section 65
[19] There was no authority precisely in point. The case of DMcL was of assistance,
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19
although not entirely on all fours. It was not in the interests of justice to adopt the course
advocated by the Crown. Section 65 was much wider than the Crown suggested. The key
words in section 65 were: the accused “shall not be tried on indictment for [the] offence …
the accused shall be discharged forthwith from any indictment as respects the offence, and
… shall not at any time be proceeded against on indictment as respects the offence”.
Section 65 did not say that the accused may “avoid conviction”, or that the Crown was
prohibited from “seeking conviction”. If Parliament had intended to allow everything up to
the point where the Crown sought conviction, the section would have been differently
phrased.
[20] The Crown sought to relocate charges from one part of the indictment to another
part. The docket was part of the indictment (section 288BA(1)). If the accused was
“discharged … from [the] indictment”, that ran counter to the concept of moving offences
from one part to another part of the indictment. If all that Parliament meant was that the
accused “could not be charged”, it would have said so.
[21] The docket would be read out to the jury. Evidence would be led on the basis of the
docket. The jury would be invited to believe PC and to accept her evidence as credible and
reliable (ie to find that what she said was “true”, which was of the essence of a trial). The
jury would be invited to use PC’s evidence as corroboration of other witnesses’ evidence.
Even although there would be no verdict of “guilty” or “not guilty” in relation to PC’s
complaint, and even if no sentence was imposed on that matter, such an approach was in
effect a trial or proceedings on indictment against the respondent on charges of which he
had been discharged. The only difference from the previous indictment was that the Crown
would not be asking for a conviction in relation to the offences in the docket. The judge
would direct the jury to come to a view on the credibility and reliability of PC and, if
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20
accepting her evidence, to use it for the purposes of the Moorov doctrine in relation to the
charges concerning other complainers. It was too limited an approach to restrict the words
“tried on indictment” and “proceeded against on indictment” in the way suggested by
the Crown. A trial was not restricted to evidence, speeches, charge, the jury delivering a
verdict, and a sentence being imposed. A witness might not speak up, the Crown might
withdraw a charge or charges and not achieve a conviction, but what had taken place was
still a “trial”.
[22] In conclusion, section 65 was not a narrow section, as the Crown suggested. The
section should be given its ordinary meaning. The whole process upon which the Crown
was seeking to embark was covered by section 65. There would be a trial on the indictment,
and the docket was part of the indictment. The court should conclude that the Crown’s
proposed course of action was contrary to section 65.
Fairness/oppression
[23] Lord Glennie had taken into account all relevant factors, including the procedural
history and Lord Burns’ refusal of a retrospective extension of time as not being in the
interests of justice (paragraph [9] of his Opinion). Lord Glennie had exercised his discretion
by refusing to allow amendment and in deciding that PC’s evidence was inadmissible. That
was an entirely appropriate exercise of discretion at first instance, with which the appeal
court should be slow to interfere. Even if the view was that Lord Glennie had not been
exercising his discretion and was deciding a matter of law, it was always open to the first
instance court to conclude that it would be unfair to allow the evidence: that was what
Lord Glennie had done. To lead evidence of allegations – held not to be in the interests of
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21
justice to be allowed to proceed – was unfair. The accused would have to face the
allegations, but by a different means. Lord Burns’ decision had not been appealed.
[24] Thus even if the defence were wrong in the approach taken to section 65, Lord Glennie
was not wrong in his approach to fairness. The offences were ones in relation to which
Lord Burns had ruled that it was not in the interests of justice to extend the time-bar. Nothing
made it “in the interests of justice” to proceed as the Crown now proposed.
Discussion
Competency
[25] The docket procedure was introduced by section 63 of the Criminal Justice and
Licensing (Scotland) Act 2010. We were advised that the procedure has been used in a
variety of situations. Examples given by the advocate depute included:
Cases where it was known that the complainer would give evidence of a rape,
but there was no corroborative evidence. The formal charge in the indictment
was of a lesser sexual offence, and the allegation of rape was contained in a
docket.
A case in which sexual offences against complainers A, B and C were libelled.
On the evidence then available, the Crown was obliged to accept pleas of “Not
guilty” in respect of those complainers. Subsequently new complainers came
forward. Also B volunteered new information about more serious charges. The
accused appeared on indictment with the earlier evidence (to which “Not guilty”
pleas had been accepted) incorporated in a docket in that indictment.
A situation in which an alleged sexual offence, part of a pattern of sexual
offences, occurred outwith the jurisdiction. That offence could be included in
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the docket, and evidence relating thereto led to assist in the application of the
[26] There is no precedent for the particular sequence of events which has occurred in the
present case. In particular, there has been no decision concerning the competency of
inclusion in the docket of alleged criminal conduct specifically ruled “out of time” by a
judge refusing to grant a retrospective extension in terms of section 65 of the 1995 Act.
[27] In our opinion, the answer depends upon a proper construction of sections 65 and
288BA, read in the context of the 1995 Act as a whole.
[28] As Lady Scott correctly decided in her Note issued on 24 July 2017, it would be
incompetent to permit an indictment containing charges 1, 2 and 3 to go to trial. The
respondent had appeared on petition on 16 July 1997 on charges which were in substance
the charges 1, 2 and 3 in the indictment. The 12-month time period stipulated in section 65
had expired on 16 July 1998. No extension of the period was sought until 12 December 2016,
when the Crown requested a retrospective extension. In his ruling dated 2 February 2017,
Lord Burns refused to grant such an extension, for the reasons noted in paragraph [5] above.
Accordingly in terms of section 65, the respondent shall not be tried on indictment “for those
alleged offences”; he has been “discharged … from any indictment as respects” those
alleged offences; and he “shall not at any time be proceeded against on indictment” as
respect those alleged offences. Thus, as Lady Scott explained in her Note of 24 July 2017:
“Decision
I do not accept the issue here is simply about the admissibility of evidence. There is
a clear issue of procedure here. The proper starting point is that the accused remains
indicted on charges which have been ruled as incompetent. The indictment
containing charges where an objection to those charges has been taken and sustained
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23
cannot be proceeded with, irrespective as to whether or not a conviction on them is
sought.
The Advocate Depute is seeking to treat the charges as now, in effect, some kind of
‘evidential’ charges.
This fails to address the effect of the ruling [that] they are time barred. The position
here, in my view, is quite different to the situation where evidence has been led and
charges withdrawn, or so called ‘evidential charges’ have been libelled and intimated
at the outset. This indictment in its present form, containing the incompetent
charges, cannot proceed …”
We agree. In our view, it would not be competent to seek to prosecute the respondent on an
indictment containing charges which were in substance those time-barred charges.
[29] In the application of the docket procedure to the present case, three matters are of
note:
1. There is no dispute that the alleged offences involving PC are “connected with [the
sexual offences] charged in the indictment” (section 288BA(1)). The Crown
proposes to lead PC’s evidence to provide corroboration for the evidence of the
other complainers by means of the Moorov doctrine, thus satisfying the
requirements of section 288BA(1) and (2)(b)(ii).
2. The docket which includes the alleged conduct involving PC is in the form of a
“note apart from the offence charged”, thus satisfying the requirements of
section 288BA(3).
3. In terms of section 288BA(4):
“It does not matter whether the act or omission [included in the docket], if it
were instead charged as an offence, could not competently be dealt with by the court
(including as particularly constituted) in which the indictment or complaint is
proceeding (emphasis added).”
[30] In our opinion, subsection (4) extends to any act or omission which, “if it were
instead charged as an offence”, could not competently be dealt with by the court in which
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the indictment was proceeding. Thus section 288BA extends, for example, to a situation
where there had been alleged criminal conduct occurring outwith the jurisdiction: the
conduct complained of could be included in a docket if it formed part of a sequence of
events, thus providing (or assisting in providing) corroboration of the offence(s) libelled in
the indictment by means of the Moorov doctrine (Lauchlan and O’Neill v HM Advocate (No 2)
[31] Similarly it would be incompetent for the Crown to seek to try an accused on an
indictment for alleged criminal conduct which had been ruled time-barred in terms of
section 65. But in our opinion, the conduct complained of might be included in a docket if it
forms part of a sequence of events capable of providing corroboration in terms of the Moorov
doctrine.
[32] On behalf of the respondent it was argued that the wording of section 65 does not
permit such an approach. We disagree. We do not accept that leading the evidence of PC
on the basis of conduct described in a docket amounts to trying the respondent on
indictment for the alleged offences referred to in the docket, or proceeding against him as
respects the alleged offences. The respondent is not being “tried on indictment” or
“proceeded against on indictment” for those matters: he is being tried on indictment and
proceeded against on indictment for the matters involving AVD, JAD, AD, and LH. What
the Crown seeks to achieve is convictions against the respondent in respect of his alleged
criminal conduct against the complainers AVD, JAD, AD, and LH. The Crown seeks to have
the respondent punished by an appropriate sentence in respect of those matters. The Crown
does not seek to have the respondent convicted or sentenced in respect of any criminal
conduct referred to in the docket concerning PC. On one view, what is contained in the
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docket is background material which may, or may not, assist in establishing facts relevant to
the proof of one or more of the formal charges in the indictment.
[33] In our opinion therefore, while it is correct that it would be incompetent for the Crown
to seek to include in the indictment formal charges 1, 2 and 3, section 288BA(4) expressly
permits the Crown to include such incompetent material in the docket. Accordingly it is our
view that, on a proper construction of sections 65 and 288BA, the docket may be amended as
sought by the Crown.
Oppression
[34] The purpose of section 65 is to prevent delays in trials. It focuses upon the putting of
an accused on a formal petition containing certain charges and thereafter, with that formal
accusatory step having been taken, the formal trial of the question whether or not the
accused has committed those offences must, as ordained by Parliament, take place within a
12-month period. Section 65 prevents an open-ended delay once the formal step of putting
the accused on petition for certain offences has been taken. But where an accused has not
been put on petition, it is often the case that historic sexual abuse charges are of considerable
antiquity. Decades may have passed. There is no time-bar for the prosecution of crimes
(other than time-bars imposed by statute: no such statute applies in the present case). Cases
involving allegations of historical sexual abuse are regarded as matters of considerable
gravity. Public policy in this jurisdiction requires such offences to be prosecuted, despite the
passage of time (cf the observations of Lord Justice General Carloway in Potts v Gibson 2017
JC 194). In this particular case, the Crown was, in our opinion, hampered to some extent by
the delayed and uncoordinated disclosures by some of the complainers.
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26
[35] Ultimately we have not been persuaded that a fair trial cannot take place in respect
of the matters alleged in respect of AVD, JAD, AD and LH by reason of the inclusion of
paragraphs 2, 3 and 4 of the docket in the indictment as it is to be amended. Nor are we
persuaded that there is some other compelling reason why the trial should not proceed.
solicitor-advocate for the respondent, that the inclusion of the matters referred to in
paragraphs 2, 3 and 4 of the docket as it is to be amended do not involve a trial of the
respondent in respect of those matters. The inclusion of the act or omission in the docket
makes it clear that this is not an offence charged against the respondent. He is not being put
to trial in respect of said act or omission. The question of a fair trial in respect of the act or
omission specified in the docket as it is to be amended does not arise. There is to be no trial
of the respondent in respect of charges 1, 2 and 3 of the indictment. As this court has
confirmed (in paragraph [28] above) the inclusion of such charges would be incompetent.
The refusal of the retrospective extension in terms of section 65 reflected the court’s
justifiable conclusion that a retrospective extension of the 12-month period by a period of
over 18 years was, in the circumstances, an excessive extension which should not be granted.
But it does not follow from that decision that the leading of evidence about the alleged
criminal conduct by means of the docket procedure would necessarily be oppressive.
Charges remaining on the indictment relate to alleged criminal behaviour against inter alios
complainers AVD, JAD and AD, said to have been committed during the years 1975 to 1983.
The defence have taken no plea in bar of trial on the ground of oppression in respect of those
charges.
[36] Accordingly it is our opinion that the plea of oppression taken in respect of the
allegations in charges 1, 2 and 3/paragraphs 2, 3 and 4 of the docket, should be repelled.
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Decision
[37] For the reasons given above, we shall allow the Crown appeal; reverse Lord Glennie’s
decision of 25 August 2017; allow the indictment to be amended as sought by the Crown; and
remit the case for trial on the amended indictment. For the avoidance of doubt, it is our view
that the evidence of PC relating to the events referred to in paragraphs 2, 3 and 4 of the docket
as it is to be amended is admissible at the trial (section 288BA(5) of the 1995 Act).